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Wednesday, April 08, 2009

Osland bid for advice on pardon fails in Victorian Court of Appeal.

The Victorian Court of Appeal in a unanimous joint decision has ruled in the Osland case that the Civil and Administrative Tribunal had been wrong in finding that the public interest required the grant of access to legal opinions provided to the Attorney General in connection with the decision to refuse her petition for mercy following conviction for murder of her husband.The High Court had remitted the matter to the Court for reconsideration in August last year, finding the Court of Appeal had erred in failing to read the documents in reaching the same conclusion on an earlier occasion. Four of the five High Court judges in the majority had said it was not ‘legally impossible’ that there might be such differences between the advices as might require disclosure in the public interest. The Court of Appeal [18] put paid to speculation on the matter, confirming there were material differences of opinion in the various advices to the Attorney. It decided it was unnecessary to say more about the nature or extent of the differences, and ruled there was nothing in the revealed differences that attracted the override discretion in Section 50(4) of the Victorian Freedom of Information Act--to order release of documents where required in the public interest.

The Court of Appeal rejected the argument that the public interest required disclosure because a press release issued by the Attorney General about the decision to reject the petition "created the misleading impression that the only legal advice (a joint opinion of three eminent counsel).. obtained .. had advised (him) to deny the petition." While the release made no reference to the fact that a number of advices had been obtained, or to any differences, the Court found [31]:

"There was nothing in the language of the press release, or in the surrounding circumstances, which would warrant this Court finding – as a fact – that the Attorney-General had thereby represented to the public either that the joint advice was the only advice he had received on the topic or that he had received no advice to the contrary. On a fair reading, the announcement was not intended to enable – and did not invite – members of the public to make an assessment of whether the Minister had made the right decision. It was not a statement of reasons for the decision. The announcement was intended to convey – and in fact conveyed – no more than that the decision had been based on, and accorded with, independent legal advice from eminent counsel."

The Court also rejected an argument that "the public interest in accountability" required disclosure of the documents all of which were exempt on legal privilege groundsbecause the issue of the press release, and its reference to the joint advice enlarged the content of the Attorney-General’s obligation of accountability. Counsel for Mrs Osland submitted:

"The taking of that step (issue of the release) meant that the demands of accountability could no longer be satisfied by the Minister being questioned or criticised in Parliament or by journalists and commentators. Because he had chosen to justify himself by referring publicly to the joint advice, so it was said, he had assumed an obligation of accountability which could only be discharged by his disclosing also that he had had other, and different, advice. That disclosure not having been made, so the argument went, the public interest in political accountability required that access be given to all of the advices under s50(4)"[35].

The Court observed:

"What underpins the submission, therefore, is a proposition of a general – and potentially far-reaching – character. The proposition is that if, in announcing a government decision, a Minister states that the decision accords with legal advice which the Government has received, the Minister must – in order to be ‘properly accountable’ – disclose the existence of any advice received which is contrary to the decision arrived at and must disclose the content of all relevant advices. That is what the public interest is said to require. Translated into the language of the Freedom of information Act 1982(Vic), this means that if a ministerial decision is stated to be supported by legal advice, and contrary advice has been received by the Minister relevant to the decision but is not referred to, the public interest under s50(4) of the Act is enlivened so as to require that access be granted to all relevant advices. (As a matter of principle, the same theory of accountability would extend to advices of all kinds, whether legal or not, on which Ministers rely in arriving at their decisions.) [37]

In what is an intriguing conclusion that warrants some close analysis, the Court rejected the argument on the basis that it was

"outside the scope of s50(4) for this Court to decide, as a matter of generality, whether there should be public scrutiny of legal advices received by a Minister in connection with the making of an executive decision. That is so whether the public interest is said to reside in greater transparency or in greater accountability. (The question of principle is no different when – as here – the Minister in announcing the decision refers publicly, without waiving privilege, to the conclusions of one such advice.) Whether ministerial accountability entails the production of legal advices relied on by ministers in making decisions, and if so in what circumstances, is a policy question which will fall to be considered, if and when it arises, by the executive or by the legislature.[41]

The Court [43-49] decided there was nothing in the particular circumstances of this case that justified the exercise of the discretion to require disclosure of otherwise exempt documents.

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About Me

Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees
from the University of Sydney, and has been involved in the FOI field for 25 years.Peter is an experienced public speaker and commentator. See In the News and Testimonials, and Career Summary for more details on background and experience.